In Re Dwyer

• Decision Date: 08 February 1926
• Docket Number: 5598
• Parties: IN THE MATTER OF THE DISCHARGE OF FRANK H. DWYER, Highway Superintendent of Beadle County.
• Court: South Dakota Supreme Court

49 S.D. 350

207 N.W. 210

IN THE MATTER OF THE DISCHARGE OF FRANK H. DWYER,

Highway Superintendent of Beadle County.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. Alva E. Taylor, Judge

#5598--Reversed

Wilmarth, Haney, McCoy & McCoy, Huron, SD

Attorneys for Appellant.

Chamberlain & Hall, Huron, SD

Attorneys for Respondent.

Opinion filed February 8, 1926

CAMPBELL, J.

Respondent, Frank H. Dwyer, had, by appointment of the board of county commissioners of Beadle county, filled the position of county highway superintendent of said county for the years 1921 and 1922, and by action of the county commissioners of said county on December 5, 1922, was again appointed to such position for a period of two years to begin January 1, 1923. On the 6th day of March, 1923, the board of county commissioners of Beadle county passed the following resolution:

"Resolved that the tenure of office of Frank Dwyer as county highway superintendent is hereby terminated, for the reasons that he has failed upon request to make an itemized account of his expenditures as county highway superintendent, that he has overdrawn the road fund, and has been excessively extravagant in the construction of roads."

Which action was without notice of any kind to respondent, and without the filing of any charges against him excepting as contained in the resolution itself, and without giving him any opportunity to appear before the board to refute any charges or defend himself thereon. From such order and resolution Dwyer appealed to the circuit court and demanded a trial de novo. The facts were stipulated in the circuit court substantially as above outlined, and the court concluded as a matter of law that the action of the county commissioners in passing such resolution of March 6, 1923, by which they sought to terminate the tenure of office of respondent, was without authority of law, and was null and void, and judgment was entered accordingly, from which judgment Beadle county has now appealed to this court.

The sole question presented by the appeal is whether said Beadle county could validly and effectively discharge its county highway superintendent by the adoption of the resolution of March 6, 1923, as shown by the stipulated facts without previous charges, notice, or hearing.

The position of county highway superintendent was first created in this state by section 15, C. 333, Laws of 1919. The briefs herein discuss the question of whether such position is or is not a public office as distinguished from mere employment. We consider it unnecessary to determine that point, since, in any event, if it is an office, it is not a constitutional office, and the power of the Legislature with reference to removal was and is plenary, and we need look no further than the proper construction of existing statute law to determine the rights of respondent in the premises, even though he may be conceded to be a "public officer." State ex rel. v. Kipp, 74 N.W. 440.

The portion of the original statute dealing specifically with the question of removal was the last paragraph of section 15, c. 333, Laws of 1919. Section 15 was amended by chapter 89, Special Session 1920; the only change being to insert in the first paragraph of the section the following words:

"Provided that the county highway superintendent shall not hold any other public office, within the county, or receive any compensation, salary or fees from any public source while acting in said capacity."

No change whatever was made in the last paragraph of section 15 as originally enacted. Then came the amendment contained in chapter 388. Laws 1921. This latest amendment inserted, as a part, and at the end, of the first paragraph of section 15 as previously amended, the following words:

"The term of office of county highway superintendents appointed for the year 1919 and 1920 and any county highway superintendent holding, office to fill such vacancy for said term shall expire on March 1st, 1921, or as soon thereafter as the board of county commissioners hold a regular or special meeting. The next term of office of county highway superintendent shall be from the time of such appointment and approval to January 1st, 1923, and each term of office thereafter shall expire on January 1st of each odd-numbered year."

No change whatever was made in the second paragraph of section 15, which has never been changed since the original enactment in 1919, but a change was made in the third paragraph having to do with the matter of removal. The third and last paragraph of section 15, c. 333, Laws 1919, as originally enacted, and as it continued until the 1921 amendment, read as follows:

"The county highway superintendent shall be provided with a suitable office by the county and shall give a bond to the county for the faithful performance of his duties in a sum not less than two thousand dollars ($2,000) nor more than five thousand dollars ($5,000) to be fixed by resolution by the board of county commissioners. The tenure of office of any county highway superintendent may be terminated by the board of county commissioners for cause with the approval of the highway commission or by the highway commission for incompetency."

This paragraph was amended by chapter 388, Laws 1921, to read as follows:

"The county highway superintendent shall be provided with a suitable office by the county and shall file a bond to the county for the faithful performance of his duties in a sum not less than two thousand dollars ($2000.00) nor more than five thousand dollars ($5,000.00) to be fixed by resolution by the board of county commissioners. The tenure of office of any county highway superintendent may be terminated at any time by a resolution of the board of county commissioners stating their reasons or by the highway commission for incompetency or inefficiency."

The change...